Deoki Nandan, J.
1. This is a defendant's second appeal in a suit for possession over certain plots of land and a house in village Gorti Kanda, Patti Bharpur of the district of Tehri Garhwal. The trial court dismissed the suit but the lower appellate court decreed it, hence this second appeal.
2. One Lalloo was married to Smt. Rupdei. They had a son Badru. Luthi Singh, Shiv Singh, Gajadhar and Budh Singh, the plaintiffs are the sons of Badru. Smt. Bisweshwari and Smt. Sateswari defendants respondents Nos. 2 and 3 are his daughters. Of the four plaintiffs only Shiv Singh has been impleaded as the first respondent, as it appears that in the lower appellate court only Shiv Singh, the second plaintiff, had appealed from the trial court's decree, and he had not impleaded the other plaintiffs as respondents. After Lalloo's death Smt. Rupdei took Galya as a Kathaia and Nagta Singh, the defendant appellant, was born of their union.
3. It appears that the agricultural lands of which Lalloo was a Maurusidar were being enjoyed in two equal shares by Badru and Nagta Singh and the name of Nagta Singh was also entered in the Khatauni as a Maurusidar of the land along with Badru and there was no difficulty so long as Smt. Rupdei was alive. According to the statement of the plaintiff respondent Shiv Singh, who appeared as P. W. 1, that was recorded on 15th July, 1969, Smt. Rupdei died some 15 or 16 years ago. That would put the date of her death somewhere in the year 1953 or 1954. Nagta Singh, the present defendant appellant had filed suitNo. 50 of 1961 on 30th October, 1961 in the Munsif s court for partition and separate possession over a half share of the property of Lallo against Badru. That suit was dismissed on 30th March, 1963. Badru's defence in that case was that Nagta Singh was an illegitimate son of his mother; and that whatever 20 or 25 nalis of land was in Nagta's possession, was the share of the mother and not the share of Nagta as the heir of Lallo. The court of the Munsif Kirtinagar, which tried the case held that Nagta Singh was not the descendant of the original Maurusidar Lalloo, that the entry of Nagta's name in the revenue records was either false or fraudulent and that he was accordingly not entitled to the relief of partition and dismissed the suit, vide judgment dated 30th March, 1963, Ext. 3. The first appeal therefrom was dismissed by the court of the Civil Judge Tehri Garhwal, vide decree dated 26th November, 1963, Ext. 4. It was alleged that a second appeal was filed in this Court, but it is undisputed that that appeal has been dismissed and the decree dismissing the partition suit filed by Nagta Singh in respect of the land in suit has become final. Badru died during the pendency of that litigation. The revenue records were corrected by expunging the name of Nagta Singh. Ext. 5 shows that the Assistant Land Records Officer passed an order on 20th March, 1964 expunging the name of Nagta Singh in accordance with the decree dated 25th November, 1963 of the court of the Civil Judge, Tehri Garhwal in that suit. There are three endorsements in the Khatauni extract Ext. I. The first dated 2nd April, 1965 shows, that on certain specified plots of land the name of Nagta Singh was ordered to be entered in class 5 (varg 5) by the Assistant Record Officer. The second endorsement dated 9th June, 1965 shows that the name of Nagta Singh was ordered to be expunged from the main tenant's column under an order dated 20th March, 1964 of the Assistant Records Officer. The third endorsement dated 30th May, 1967 shows that the name of Nagta Singh was expunged under an order dated 24th March, 1965 in Appeal No. 45 of 1963-64 even as an under-tenant of class 5 of the Maurusidar Badru. However, Nagta Singh appears to have continued in possession and the suit giving rise to the present second appeal was filed in the year 1968; Badru having died in the meanwhile on 14th February, 1967.
4. In view of the dismissal of Nagta Singh's Suit No. 50 of 1961 for partition on the finding that he has no title to the land as a descendant or heir of Lalloo, the main point which survives for consideration in the present second appeal is whether Nagta Singh had perfected his title to the land by adverse possession, and that was the first issue raised at the trial. The trial court held that Nagta Singh had perfected his title to the property in suit by adverse possession. The lower appellate court has taken a contrary view holding that Nagta's possession could be said to have become adverse only when he filed the earlier suit for partition, namely, Suit No. 50 of 1961, and 12 years not having elapsed from the date of the filing of that suit, he could not be said to have prescribed title to the land by adverse possession, According to the lower appellate court the ingredient of hostile possession is missing in the present case, that the plaintiff Shiv Singh had stated that the plots were given to his grandmother, that is, Smt. Rupdei, Nagta's mother; that it is clear that she was simply in permissive possession and that after her death Nagta continued to remain in possession of the disputed property as he was living with Smt. Rupdei; and 'it is clear that the possession of the defendant (Nagta) was also permissive'. According to the lower appellate court the defendant did not assert hostile title at any time during this period and clearly admitted that before the suit for partition was filed by him 'they were in peaceful possession separately.' and that 'one did not interfere with the possession of the other' and the plaintiff Shiv Singh also stated that 'after the death of his grandmother the parties did not interfere with the possession of each other.' According to the lower appellate court 'such a possession may continue for over 100 years but it will never be adverse to the rightful owner.' Further, according to the lower appellate court the defendant Nagta Singh asserted hostile title in 1961 when he filed the suit for partition.
5. Having heard learned counsel for the parties I am afraid that the lower appellate court has misunderstood the meaning of adverse possession. Possession in order to be adverse has to be open and as of right. Such possession is said to be hostile or adverse to the true owner by reason of the fact that it is adverse or prejudicial to his interest and unless it isproved that the possession started with his permission or under a grant made by him, the possession cannot be said to be permissive. The exclusive nature of Nagta's possession over the land in suit does not seem to have been challenged by the plaintiff. In the present case it appears that although Nagta Singh had filed the suit for partition which normally implies that the parties are in joint possession, it appears that the parties, namely, Nagta Singh and Badru had been in separate possession over specific portions of land for a long number of years even before the suit for partition was filed. The suit for partition was filed not because Nagta Singh wanted a declaration of his share and the division of joint property into two separate portions and separate possession over the same. According to the recital in the judgment of the lower appellate court Nagta Singh had instituted a partition suit because he thought that the specific plots of land in his possession were less than his moiety share. Nagta's name was already recorded when the suit for partition was filed by him as a Maurusidar of 1/2 share of the entire land, along with Badru whose share therein was also specified to be 1/2. Nagta's name was struck off on account of the dismissal of the suit for partition. If the parties had been in joint possession it was not necessary for the plaintiff in the suit giving rise to the present second appeal to have sued for possession as he has done. The very fact that the suit for possession was filed over specific plots of land implies that Nagta had been in exclusive possession of those specific plots of land and this position had continued since the very inception. The exclusive nature of Nagta's possession did not undergo any change when his suit for partition was filed, or was dismissed. He asserted that Nagta Singh was in possession of the land given to Badru's mother Smt. Rupdei. Therefore, unless it were shown that Badru expressly permitted Nagta to remain in possession of the land either as a licensee or a sub-tenant, Nagta's possession of the land after the death of Smt. Rupdei can only be deemed to be adverse to Badru. For, according to the finding in the partition suit Nagta had no right to the land as an heir of Lalloo. Nagta was throughout claiming to be in possession of the land as a Maurusidar and not as an under-tenant of Badru and the fact that his name was recorded over a 1/2 share in the land as Maurusidar clearly shows that Badrumust have had notice of Nagta's claim. Indeed, as seen above, Nagta was put into exclusive possession of specific plots of land and the suit giving rise to the present second appeal is for possession over those specific plots of land. It may be further observed that the period of 12 years had not elapsed from the date of the death of Smt. Rupdei up to the date of the institution of Nagta's suit for partition and it could not, therefore, be said that the question whether Nagta's possession had become adverse since the death of Smt. Rupdei, and that Nagta could be said to have prescribed title as a Maurusidar of the land in his possession on that basis, could not have been raised in the earlier suit for partition by Nagta. The point cannot, therefore, be said to be constructively res judicata by reason of the decision against Nagta's title in the earlier suit.
6. I am, therefore, of the opinion that the view taken by the lower appellate court that Nagta's possession was not adverse to Badru before the filing of the partition suit in the year 1961, is erroneous, and it must accordingly be held that by the time the suit giving rise to the present second appeal came to be filed Nagta had perfected his title as Maurusidar of the property in suit by more than 12 years adverse possession from the date of the death of Smt. Rupdei.
7. In any view of the matter it was urged that Nagta was not liable to ejectment in view of the enforcement of the Kumaun and Uttarkhand Zamindari Abolition and Land Reforms Act, 1960. Since I have come to the conclusion that by the time the present suit was filed, Nagta had prescribed title as Maurusidar to the specific plots of land in his possession, and to which the suit giving rise to the present second appeal relates, and the suit for possession against him is liable to be dismissed on that ground, it is not necessary to consider the said plea sought to be raised by the application for amendment of the written statement. The application is accordingly dismissed. The papers filed by the parties in this Court for ascertainment of the position of the parties in the revenue records after the enforcement of the Kumaun and Uttarkhand Zamindari Abolition and Land Reforms Act may be returned to them.
8. In the result the appeal succeeds and is allowed. The judgment and decree of the lower appellate court are set aside and the decree of the trial court is re-stored, but in the circumstances I would direct the parties to bear their own costs in this Court.